Here is a memorable case that illustrates how to get audio and video footage into evidence, how to challenge admission of that evidence—and how not to challenge it.
A crossbow-wielding defendant at trial cleverly attempted to prevent admission of audio and video footage proving he fired arrows into the plaintiff’s law office. Although unrepresented at trial, the shrewd defendant in Quintero v. Weinkauf (D1d4 Mar. 3, 2022 no. A159812) 2022 WL 620722 (nonpub. opn.) was keenly aware of three important things about using audio and video footage at trial: (1) it must have proper foundation; (2) audio recorded without consent generally is illegal; and (3) it may implicate the right against self-incrimination.
But none of the defendant’s strategies worked for one simple reason: he was transparently attempting to lie to the court. The plaintiff recovered a judgment totaling $2.2 million against the defendant (who was found to be worth $1.5 million).
Here are some more facts from this memorable case.
Someone fired crossbow arrows into the plaintiff’s law office building on three separate occasions. The plaintiff installed a surveillance video system after the third occasion. (Two crossbow arrows apparently being within tolerance of this hardy plaintiff.)
Anyone who would shoot three crossbow arrows at your law office surely would be back for a fourth, and sure enough, the plaintiff spotted the defendant’s red Jeep in her footage. And the plaintiff could positively identify the defendant after the law office building suffered a fifth crossbow firing (the defendant, it seems, really hates that law office building).
Yes, defendant admitted on a phone call with the plaintiff, he fired a crossbow arrow into the plaintiff’s building. But only once, he insisted. He had no idea how those other crossbow arrows got there. The police monitored and recorded that phone call.
At trial, the defendant moved in limine to exclude the video of him shooting the crossbow at the plaintiff’s building and the audio of his phone call admitting to firing the crossbow at the plaintiff’s building.
The trial court partially granted the motion on the grounds of self-incrimination, and that the phone call was recorded without the defendant’s consent, and that it was in furtherance of settlement negotiations under Evidence Code section 1152. The audio and video could only be used for impeachment.
But at this point the defendant got cocky. On cross-examination, the plaintiff asked the defendant if he denied shooting a gun at the building. The defendant knew this question put him on a fork: a truthful answer doomed him, and a false answer would invite the audio and video footage.
So the defendant refused to answer.
That didn’t work. The trial court allowed the plaintiff to play the audio and video footage for the jury, ultimately resulting in judgment for the plaintiff.
On appeal, the Court of Appeal held admitting the audio and video footage was not an abuse of discretion.
First, the court acknowledged that Penal Code section 632 ordinarily prohibits the use of recorded phone calls without the other party’s consent. (Pen. Code, § 632, subds. (a) & (d).) But the court went on to note that the statute does not prohibit the use of such recording to impeach **a witness making statements inconsistent with those conversations. (Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1496–1497; People v. Crow (1994) 28 Cal.App.4th 440, 452 [“Evidence of confidential conversations obtained by ... recording in violation of [Penal Code] section 632 is generally inadmissible ... but can be used to impeach inconsistent testimony by those seeking to exclude the evidence”].) The rationale for this exception is simple: Penal Code section 632 “cannot be construed so as to confer upon a testifying witness the right to commit perjury.” (Frio, supra, at p. 1497.)
Here, the defendant tried to offer evidence of a towing receipt to the effect he was not present with his crossbow at the time and place the video showed he was. This opened the door to being cross-examined on the subject.
Here, the defendant tried to offer evidence of a towing receipt to the effect he was not present with his crossbow at the time and place the video showed he was. This opened the door to being cross-examined on the subject. By refusing to answer, allowing the audio and video as impeachment was proper.
The court held the same rationale applied to reject the defendant’s other arguments that the recording violated his right against self-incrimination, and his right to counsel, and that his statements during the call revealed settlement negotiations protected by Evidence Code section 1152. “‘While the privilege against self-incrimination does assure an accused of the right to remain silent at his trial, it does not ... encompass a right of an accused to lie in his own behalf at trial.’ ” (People v. Macias (1997) 16 Cal.4th 739, 749; People v. Coleman (1975) 13 Cal.3d 867, 892.) The same is true for alleged Sixth Amendment violations. (People v. May (1988) 44 Cal.3d 309, 319.)
And the court in People v. Crow (1994) 28 Cal.App.4th 440, 452, explained that where a statement is obtained in violation of a criminal defendant's constitutional rights, or is made during the course of negotiations, there is a “significant” distinction between use of such statements by the prosecution in its case-in-chief, versus use “only to impeach the defendant's credibility after he had first made contrary statements on direct examination in the defense's case-in-chief.” (Crow, supra at pp. 450–451.) Use of these statements for impeachment purposes is permissible because, otherwise, such protections could be “ ‘perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.’ ” (Id. at p. 451.)
The court acknowledged that audio and video footage is considered a “writing” for evidentiary purposes, and thus must be authenticated before it can be received into evidence. (Evid. Code, §§ 250, 1401, subd. (a).) To authenticate a writing, its proponent must introduce “evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.” (Evid. Code, § 1400. See also Cal. Rules of Ct., rule 2.1040 [requiring the offering party provide a transcript of the electronic recording and copies of the recording to the opposing parties].)
the plaintiff laid sufficient foundation here bye testifying that the voice is on the audio recording matched her recollection of the call in which she participated, and the detectives testified about how they created the recording and copied the audio to a DVD.
The Upshot: Have a plan to admit your audio and video evidence. And if you are challenging the admission of evidence on appeal, remember that the standard is abuse of discretion, and thus very difficult to overcome. And if there is video of you shooting your crossbow at someone’s office, and if you admitted you actually did shoot the crossbow, and if you still insist on denying it at trial—and further if you are worth $1.5 million—consider hiring legal counsel.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
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